Features » July 30, 2008

The Rat Trap (cont’d)

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A call for reform

Since the 2007 House Judiciary Committee hearing in the wake of the death of Kathryn Johnston, little headway has been made in reforming the practice of using incentivized informants to send people to jail – and, possibly, execution.

According to the American Bar Association (ABA), 18 states now require corroboration of an accomplice’s statements. Those that require corroboration for other forms of incentivized witnesses, however, are few and far between.

Illinois currently mandates corroboration in capital cases, and courts in Nebraska and Oklahoma have required corroboration for jailhouse snitches. Texas, meanwhile, has a different requirement, not for jailhouse snitches, but for undercover drug operatives working for the police.

Criminal justice reformers say they want to make sure police and prosecutors are following protocol in how and when they use paid or incentivized informants.

Taslitz, who serves in the ABA’s Criminal Justice Section, says more transparency is needed during the discovery phase. For example, he’d like to see defendants who are negotiating a plea agreement have access to the information and witnesses being used against them.

In a 2005 ABA resolution that Taslitz helped write, the association urged federal, state and local authorities to require that informants meet certain standards of credibility and that courts mandate corroboration in all cases that involve jailhouse snitches.

But so far there has been little in the way of reform.

“It’s a slow process,” Taslitz says, “and it doesn’t have to necessarily be a matter of legislation, but it could be a matter of individual prosecutors’ offices adopting specific policies; it can be a matter of local ordinances; it can be case law where judges start to intervene. It’s a slow process and, as of yet, there is no uniform informants act.”

For cases that do go to trial, Natapoff has been pushing for “pre-trial reliability hearings” as a potential remedy. Under such a system, the burden would be on the government to prove witness reliability by a preponderance of evidence. Courts would be required to consider such factors as the criminal history of the informant, any compensation for their testimony, and other cases in which the informant has testified, among other things.

“Given the prevalence of informant falsehoods in wrongful capital convictions, such hearings should be mandatory in capital cases, even where the defense intends to concede guilt and move directly to the sentencing phase,” Natapoff says.

Considering that for every innocent person convicted of murder, a real murderer escapes justice, requiring such checks and balances is as much a victim’s rights issue as a matter of criminal justice.

For his part, in spite of losing a decade and a half of his life, Levon Jones says he holds no grudge against the snitch that put him on death row.

Christopher Moraff writes about national politics, social justice and culture for a number of publications, including The American Prospect online, Design Bureau and The Philadelphia Tribune. His columns appear weekly on Philadelphia magazine's blog The Philly Post. Moraff, who lives in Philadelphia, is a member of the In These Times Board of Editors.